Environmentally Sensitive Area (ESA) Grant Condition Waiver Program

Starting in October 1979 and continuing for nearly a decade thereafter, EPA Region 2 applied a special condition to many wastewater facilities’ construction grants (see Federal Register, Vol. 43, No. 188, September 27, 1978) to protect "Environmentally Sensitive Areas” (ESAs) from induced development. ESAs are generally, but not limited to, wetlands and floodplains. The condition was applied to both new treatment facilities and/or the expansion of existing facilities including treatment plants, pump stations, force mains, interceptors, collection systems and federally-funded individual systems.

Some Frequently Asked Questions About ESAs

What does the ESA grant condition do?
This grant condition restricts Grantees (Municipalities and Sewerage Authorities) from providing sewer connections for new development to be located on parcels containing ESAs for a period of 50 years from the date that the Environmental Assessment and Finding of No Significant Impact (EA/FNSI) was issued for the wastewater collection and/or treatment facility concerned. Specifically, the agreement prohibited discharge of wastewater from any building, facility or other construction on any parcel of land within wetlands and/or the 100-year floodplain that was undeveloped as of the date of the EA/FNSI, unless approved in writing by EPA Region 2. The required approval is called a "waiver."

What is a waiver?
A "waiver" is an exemption to the ESA grant condition granted by the EPA Region 2, allowing the connection of a project proposed for a parcel containing ESAs to be connected to the federally-funded sewage treatment works. In cases where ESAs will remain on the parcel in question after construction of the proposed project, a “partial waiver” will be issued.
A waiver is usually issued when the entirety of ESAs on the parcel in question will be filled and no longer exist after construction of the proposed project. Consequently the sewer hookup restriction will not be in effect for the parcel in question once the project is completed.
A partial waiver is issued when some amount of ESAs will remain on a parcel after the construction of the proposed project. A partial waiver allows for the connection of the proposed project as noted in the project site plan only; the ESA grant condition will remain in place on the remaining ESAs on the parcel. Consequently, should additional construction be proposed for the parcel in question at a later date, another waiver would be required.

Both waivers and partial waivers allow the connection of the proposed project as noted in the project site plan that is submitted. If any modifications are made to the project site plan, a resubmittal is required.

Why does the waiver program exist?
Grants for construction of sewage treatment conveyances and facilities have been found to promote and/or support development in ESAs unless adequate safeguards against encroachment into these areas are provided. The goal of the ESA grant condition is to minimize the impacts from induced development; more specifically, "to reduce the risk of flood loss, to minimize the impacts of floods on human safety, health and welfare, . . ." (Executive Order 11988) and “to minimize the destruction, loss or degradation of wetlands" (Executive Order 11990).

How do I know if my project requires a waiver?
Check the list of NJ and NY Grantees that have construction grants upon which the ESA Grant Condition has been placed. Then contact the Grantee in question to determine whether your particular project is affected by the ESA Grant Condition. Please note that project areas for individual grants may cross municipal boundaries; accordingly, a parcel located within one municipality may be served by sewage infrastructure in an entirely different municipality. Ask your local planning board for clarification if there is uncertainty over what infrastructure will be used to convey and treat sewage from the proposed project.

Who requests the waiver?The Grantee (not the property owner, developer, or contractor) is required to obtain approval from EPA Region 2 on a lot-by-lot basis for waivers of the ESA grant condition. The Grantee is responsible for submitting all the required documents to the EPA for review. Contractors, builders, developers, and land owners must coordinate with and provide the required information to the Grantee for submittal to the EPA.

How is the extent of ESAs determined?
All facility plans prepared for the conditioned construction grant projects were required to provide detailed mapping of environmentally sensitive areas and existing land uses within the service area of the proposed wastewater facilities. This mapping delineated the extent of the undeveloped parcels within or containing ESAs. However, it should be noted that it was anticipated that the boundaries of ESAs would change over the years; therefore the ESA grant condition restriction only applies to the most current geographic extent of ESAs. Accordingly, project sponsors should utilize the assistance of trained professionals in delineating the geographic extent of ESAs on the parcel in question.

What does EPA consider in approving a waiver?
Generally, the decision on whether to waive the special grant condition is based upon the following factors (Waiver Review Criteria[PDF 25 KB, 1 pp] ):

The extent and ecological quality of the ESAs that will be affected by the project, as well as the extent of ESAs that will remain post construction;

the sufficiency of any proposed mitigation measures, such as creation or enhancement of wetlands;

the status of development commitments (e.g., planning board approvals and building permits);

the amount of available infrastructure (e.g., roads, water and gas mains, electrical service, and storm sewers) already in place that is intended to serve the undeveloped parcel;

the potential to cause economic hardship to grantees or municipalities if sewer hookup is denied for vacant parcel(s) in question;

for requests that encroach on the floodplains, whether or not the community in which the project is located participates in the regular phase of the Federal Emergency Management Agency’sNational Flood Insurance Program; and

the location of the project within the floodplain (e.g., areas at lower elevation are more susceptible to flood losses).

How does the grantee address the factors considered by EPA in approving a waiver?
In order to address these issues, EPA has created a list of items that must be included in a Waiver Request Package.

How much time does it take to receive a waiver from EPA?
Normally, EPA’s review of waiver requests takes from 6-8 weeks. The submission of expired permits and/or LOIs, inconsistencies in the material, and/or failure to include any of the required elements could result in substantial delays in waiver request processing.

Who receives the waiver approval notification?
If, in consideration of the supporting information submitted (please refer to the Waiver Review Package for details), EPA Region 2 has determined that the impacts from the proposed project to ESAs will be negligible, or have otherwise been sufficiently mitigated, an approval letter will be issued to the Grantee, permitting the hookup of the project to the federally-funded sewage treatment works.

What happens when a waiver is denied?
If, in consideration of the supporting information submitted (please refer to the Waiver Review Package for details), EPA Region 2 has determined that the impacts from the proposed project to ESAs will be considerable, avoidable, or have not been sufficiently mitigated, a letter denying the waiver will be issued to the Grantee. Accordingly, hookup of the project to the federally-funded sewage treatment works will not be approved.

A waiver denial generally occurs when significant impacts to ESAs (i.e., filling in a large portion of a wetland) are proposed. The EPA recommends that the developer or builder modify the project and/or provide mitigation measures to minimize or eliminate these impacts. Once the project has been modified to take into account EPA’s concerns as noted in the waiver denial letter, the project sponsor can request that the Grantee resubmit the revised information for a new determination.

A letter from the grantee requesting that the waiver application be approved.

A project site plan, including clear local and regional maps, a delineation of onsite wetlands and floodplains, as well as any mitigation measures that are proposed.

A copy of an NJDEP Letter of Interpretation (LOI).

A copy of any Federal & Statewide Wetlands Permit(s), Water Quality Certificates, Transition Area Waivers/Averaging Plans, Stream Encroachment Permits, Coastal Area Facility Review Act (CAFRA) Permits OR copies of the dated and signed applications sent to NJDEP for any or all of the aforementioned permits.

A copy of an NJDEP Treatment Works Approval (TWA) OR a dated and signed copy of the application sent to NJDEP for a TWA OR a copy of the Areawide Water Quality Management Plan (AWQMP) consistency determination received from NJDEP OR a dated and signed copy of the application sent to NJDEP for an AWQMP consistency determination.

A copy of local planning approvals.

A project summary statement which includes information on the available infrastructure for the proposed project.

New Jersey (within Pinelands)

Please Identify

Include a Copy of the Following

Sewerage Authority:

Construction Grant #:

Project Name:

State/ County/ Town/ Address of project including zip code:

Block/Lot #:

A letter from the grantee requesting that the waiver application be approved.

A project site plan, including clear local and regional maps, a delineation of onsite wetlands and floodplains, as well as any mitigation measures that are proposed.

A Certificate of Filing or Waiver from Strict Compliance issued by the Pinelands Commission.

A copy of an NJDEP Treatment Works Approval (TWA) OR a dated and signed copy of the application sent to NJDEP for a TWA OR a copy of the Areawide Water Quality Management Plan (AWQMP) consistency determination received from NJDEP OR a dated and signed copy of the application sent to NJDEP for an AWQMP consistency determination.

A copy of local planning approvals.

A project summary statement which includes information on the available infrastructure for the proposed project.

A letter from the grantee requesting that the waiver application be approved.

A project site plan, including clear local and regional maps, a delineation of onsite wetlands and floodplains, as well as any mitigation measures that are proposed.

A copy of any Federal, Statewide, and local Wetlands Permit(s), Water Quality Certificates, State Environmental Quality Review Act (SEQRA) documents OR copies of the dated and signed applications sent to U.S. Army Corps of Engineers/NYSDEC/municipalities for any or all of the aforementioned permits.

A copy of local planning approvals.

A project summary statement which includes information on the available infrastructure for the proposed project.

If the above listed are complete and included in the submittal package, review of waiver requests takes from 6 to 8 weeks. Failure to include any of these items could result in substantial delays in processing these requests.